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Galligan v. August

18 N.Y.S. 162 Court General Term. Decision date 1892-03-10 English

Delivered by *163 Ehrlich, C. J.

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p. 162
Galligan v. August.
(City Court of New York,
General Term.
March 10, 1892.)

Headnote

Examination before Trial—When Denied.
In an action for injuries caused by the negligence of defendant as the owner of realty, wherein defendant admitted the ownership, but denied “possession and control, ” the question involved in the denial being easily capable of determination otherwise than by the examination of defendant before trial, a motion for that purpose should have been denied.
Appeal from special term.
Action by Thomas P. Galligan against Matilda August. From an order denying a motion to vacate an order for her examination before trial, defendant appeals.
Reversed.
Argued before Ehrlich, C. J., and Van Wyck and Fitzsimons, JJ.
J, J, & A. Lyons, for appellant. J. J, Rode, for respondent.

An order for the examination of an adverse party before trial is not matter of strict right; it should be sustained only where the evidence is material to the party seeking it, and there is danger that the oral evidence of the party cannot be had at the trial. Jenkins v. Putnam, 106 N. Y. 272 , 12 N. E. Rep. 613 . At all events, it is for this court to determine whether a proper ease for an examination in advance of the trial has been established. The action is to recover damages for injuries received by the negligence of the defendant, as owner of certain realty. The defendant admits the ownership, but denies “possession and control.” Ordinarily, these things follow the legal title, and, if any one else is in possession or control, the fact ought to be easily ascertained in many ways. If the examination of the defendant becomes necessary, (and it probably will not,) it maybe had at the trial. At all events, we find no necessity for the examination in advance of the trial, and deem the attempt to obtain it experimental. It follows that the order appealed from must be reversed, with costs. All concur.

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